Citation Nr: 0609464
Decision Date: 03/31/06 Archive Date: 04/07/06
DOCKET NO. 04-22 392 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to service connection for a cervical spine
disability.
REPRESENTATION
Appellant represented by: Florida Department of Veterans
Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
B. Wilson, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1982 to May 1987.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 2003 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida, which denied entitlement to the
benefit currently sought on appeal.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action is required on her part.
REMAND
A preliminary review of the record reveals that the veteran
has not received proper notice under 38 U.S.C.A. § 5103(a)
(West 2002) and 38 C.F.R. § 3.159(b) (2005) regarding her
claim for service connection. Such notice must accomplish
the following: (1) inform her about the information and
evidence not of record that is necessary to substantiate her
claim; (2) inform her about the information and evidence that
VA will seek to provide; (3) inform her about the information
and evidence that she is expected to provide; and (4) request
or tell her to provide any evidence in her possession that
pertains to her claim, or something to the effect that she
should "give us everything you've got pertaining to your
claim(s)." Furthermore, as adequate notice applies to all
elements of a service connection claim, to include the degree
of disability and the effective date of the disability, the
veteran must be notified of these aspects as well.
In her hearing before the undersigned in September 2005, the
veteran testified to receiving treatment from 2000 forward
from three VA facilities - Bay Pines VA Medical Center
(VAMC), Tampa VAMC, and Dunedin VA Community Based Outpatient
Clinic. The veteran further indicated that the Dunedin
records include a nexus statement from her treating
physician, associating her current disability with the in-
service motor vehicle accident. The claims file, however,
currently only contains records from Tampa for a period of
two months. All available VA records for this veteran must
be retrieved.
Given that the veteran's July 2004 VA examination was
conducted without all relevant medical records, a
contemporaneous and thorough VA examination and medical
opinion is appropriate.
While the further delay is regrettable, due process
considerations require remand of this case. Accordingly,
this matter is remanded to the RO via the Appeals Management
Center in Washington, DC for the following:
1. Notify the veteran of information and
evidence necessary to substantiate her claim
for service connection, to include the
criteria for rating any disability found to
be service-connected and the regulations
regarding the effective date of a finding of
service connection. Further notify the
veteran of information and evidence that VA
would seek to provide and information and
evidence that she is expected to provide.
Request the veteran to "provide any evidence
in [her] possession that pertains to the
claim."
2. Request the veteran to provide a list of
facilities where she has received treatment
for her cervical spine disability since her
separation from service and obtain any
identified records not already of record.
3. Obtain treatment records from the VAMC in
Tampa, Florida; the VAMC in Bay Pines,
Florida; and the Community Based Outpatient
Clinic in Dunedin, Florida, for the period
from January 2000 forward.
4. Schedule the veteran for an examination
to determine the nature and etiology of any
cervical spine disability diagnosed. The
claims folder should be made available to the
examiner, and the examiner should verify that
it was reviewed. All testing deemed
necessary should be conducted and the results
reported in detail. The examiner is asked to
render an opinion as to whether it is at
least as likely as not (probability of fifty
percent or more) that any cervical spine
disability diagnosed is related to the
injuries that she sustained in an in-service
motor vehicle accident in October 1984. A
complete rationale for any opinion rendered
is requested.
5. Thereafter, readjudicate the issue on
appeal. If the determination remains
unfavorable to the veteran, she and her
representative should be furnished a
supplemental statement of the case which
addresses all evidence associated with the
claims file since the last statement of the
case. The veteran and her representative
should be afforded the applicable time period
in which to respond.
The case should then be returned to the Board, if in order.
The Board intimates no opinion as to the ultimate outcome of
the veteran's claim. The veteran need take no action unless
otherwise notified, but she may submit additional evidence
and argument on the matter the Board has remanded to the
regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
_________________________________________________
JOAQUIN AGUAYO-PERELES
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2005).